What's Up in the 8th
We Clevelanders apparently spend our time shooting people or driving drunk. Last week was the week for drunk driving; of the nine decisions, one-third involved drunk drivers. All teach simple lessons, most of them factual, rather than legal, and most of which we've at least suspected to be true, if not known for certain. Like, for example, your chances of getting arrested for drunk driving increase exponentially if your eyes are glassy, your speech is slurred, you reek of alcohol, and you have difficulty standing. They increase logarithmically if the best you can manage on the one-leg stand is three seconds, followed by you almost falling down while muttering, "Ah, fuck it."
Oh, and "don't swear at the cops" is a life lesson provided by another case.
We also rape people, although it often takes the police a long time to figure that out. Hence, the prosecutor's cold case squad, tasked with connecting the results of rape kits, which were finally sent out after collecting dust in police evidence rooms for close to two decades, with the perpetrators.
And so we come to Warren Durham, and his appeal from his conviction of raping four women between 1993 and 1995, the last with a gun. For this he was given a sentence of forty years, plus one for the firearm specification.
Even since the Supreme Court's decision a few years ago in State v. Bonnell, the 8th has taken a rather charitable view of what a judge has to say in order to make the findings for imposition of consecutive sentences. Alas, the panel decides that the judge here didn't even make it over that low bar, holding that what the judge said didn't include anything within the same zip code of the required finding that the sentences aren't disproportionate. So back it goes.
But there's a catch: while the jury had convicted Durham of the three-year firearm specification, the judge had only sentenced him on the one-year spec. The State missed this, and Durham's lawyer certainly wasn't going to bring it up, but the panel catches it, and orders that on the remand the sentence should include the three years, not the one.
So here's the situation for Durham: He's looking at two more years than he already had. Besides the imposition of that additional time, the hearing on the remand is limited to the judge deciding whether she believes that the sentences she imposed were in fact not disproportionate. Essentially, Durham's only hope of not winding up with more time than he started out with is the judge concluding that someone who raped four women isn't as bad a guy as she initially thought.
To get back to shooting people, that provides the backdrop for two other cases, State v. Masters and State v. Roberts. Masters is the easier case. He pled to felonious assault with a one-year firearm spec, and possession of a firearm in a liquor permit premises. The judge gives him four years on the former (three plus one for the spec), and three years of community control sanctions, including six months in CBCF, to start when he gets out of prison.
Masters' arguments go nowhere. No, the judge doesn't need to make findings for consecutive sentences; that only applies if both are prison sentences. No, the firearm spec shouldn't have merged with the liquor permit firearm offense; in State v. Ford the Supreme Court held that a firearm specification was a sentencing enhancement, not a separate offense. ("It's a feature, not a bug!") But it still goes back, because a couple weeks ago the court decided that a judge can't run a CCS sanction consecutive to a prison sentence, even if they're on different offenses.
Roberts' arguments don't go anywhere, either. He pleads to murder with a three-year firearm specification, so that's 18 to life. He claims his plea should be vacated because there was some confusion about parole, and there was: the judge initially asked whether the offense was subject to a five-year period of post-release control, and ultimately advised the defendant that if he violated parole, he could be sent back to prison for up to one-half of his original sentence.
He also argues that the judge should have taken a separate plea to the firearm specification, and I was surprised to find that there's some old case law supporting this. Apparently, though, as long as the judge folds the two - "how do you plead to the charge of attempted murder, with a three-year firearm specification" - everything is fine.
Masters also raises the issue of the judge's imposition of a $20,000 fine. The court notes that the imposition of the mandatory fine is required unless the defendant files an affidavit of indigency before the sentencing hearing, and the lawyer didn't.
Well, a couple of points. First, the fine is $15,000, not $20,000; the fine for murder is governed by RC 2903.02, not 2929.18. Second, it's not mandatory. For drug trafficking offenses, a fine of one-half of the maximum fine is mandatory. But the fine for murder is completely discretionary.
But you know what? I'm not blaming the court for this. As various panels have explained, it's not up to the court to make the arguments for the appellant. I looked up the briefs, and the panel addressed the very arguments Masters made, nothing more.
That's not on the court.